Nebraska AG Questions Constitutionality of Appointed Election Officials

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Nebraska’s Attorney General has issued an opinion finding that the Cornhusker State’s appointment of election commissioners and deputies in larger counties could violate the state constitution. KNOP News has more:

Civic Nebraska applauded an opinion issued Tuesday by Attorney General Doug Peterson that said the appointment of election commissioners in several of the state’s largest counties was “constitutionally suspect.”

In a seven-page opinion, the attorney general supported Civic Nebraska’s assertion that county election officials and chief deputy election commissioners are county officers, and therefore must be elected and not appointed.

Election commissioners in three counties – Douglas, Lancaster, and Sarpy – are appointed by the governor, while county commissioners do the appointing in Buffalo, Cass, Hall, and Platte counties. All told, the seven counties make up a majority of the state’s voting population.

John Cartier, Civic Nebraska’s director of voting rights, said the organization looks forward to working with the Legislature to find a remedy in the 2020 legislative session.

“With the 2020 elections approaching, this matter should be addressed in a pragmatic way that will give citizens back their right to elect those who conduct elections in their counties,” he said.

If a legislative solution is unattainable, Cartier said, Civic Nebraska would be prepared to file a legal challenge to the standing of the unelected officials.

Known as a quo warranto action, that challenge is used to resolve a dispute over whether a specific person has the legal right to hold a particular public office. Quo warranto tests the legal right to hold an office, not an official’s performance in that office, Cartier said.

“It has always been the right of Nebraska citizens to choose the officials who run their elections,” Cartier said. “And it is vital that all of Nebraska’s elections are administered by officers that are chosen in accordance with the Nebraska Constitution.”

The statutes in question require counties that reach certain population thresholds to allow the governor or county boards to appoint county election commissioners. Civic Nebraska has asserted that these statutes are in violation of Article IX, Section 4 of the Nebraska Constitution, which defines “necessary county officers” and plainly states that those officers are to be chosen by voters…

“It is our view that the statutes providing for the appointment of election commissioners and chief deputy election commissioners would, if challenged, be held unconstitutional by the Nebraska Supreme Court,” the opinion reads.

The issue of appointing versus electing election officials is one that generates debate in the field – but you can argue that the challenge here is less about that than differential treatment for larger and smaller counties in Nebraska. Either way, here’s hoping that policymakers can find a consensus solution that doesn’t leave the status of county election officials uncertain for the 2020 election and beyond. Stay tuned…

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